It seems there is a very fine line between regulating a profession for the welfare of the public and the constitutional rights of the individuals that would like to practice a common calling. As long as this serves a legitimate state interest and not the self interest of the board or other practitioners it is a viable function of state police power.  Some states regulate professions such as cat groomers, hair braiders, and shampoo technicians. It’s hard to tell just to what degree these regulations bring protection to the consumer. The Virginia Legislature has decided on a set of criteria in order to establish whether a regulation shall be imposed upon a profession. The summary is listed below.

§ 54.1-100. Regulations of professions and occupations.

The right of every person to engage in any lawful profession, trade, or occupation of his choice is clearly protected by both the Constitution of the United States and the Constitution of the Commonwealth of Virginia. The Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when (i) it is clearly found that such abridgment is necessary for the protection or preservation of the health, safety, and welfare of the public and (ii) any such abridgment is no greater than necessary to protect or preserve the public health, safety, and welfare.

No regulation shall be imposed upon any profession or occupation except for the exclusive purpose of protecting the public interest when:

1. The unregulated practice of the profession or occupation can harm or endanger the health, safety or welfare of the public, and the potential for harm is recognizable and not remote or dependent upon tenuous argument;

2. The practice of the profession or occupation has inherent qualities peculiar to it that distinguish it from ordinary work and labor;

3. The practice of the profession or occupation requires specialized skill or training and the public needs, and will benefit by, assurances of initial and continuing professional and occupational ability; and

4. The public is not effectively protected by other means.

No regulation of a profession or occupation shall conflict with the Constitution of the United States, the Constitution of Virginia, the laws of the United States, or the laws of the Commonwealth of Virginia. Periodically and at least annually, all agencies regulating a profession or occupation shall review such regulations to ensure that no conflict exists.

Comments on Proposed Regulations

Part V Onsite Soil Evaluator

18VAC160-40-230. License required.

A. Notwithstanding the provisions of Chapter 4 (§ 54.1-400 et seq.) of Title 54.1 of the Code of Virginia, no individual shall evaluate soils and soil properties for suitability as locations for or design conventional or alternative onsite sewage systems without possessing a valid license issued by the board.

Section 40-230 violates criteria #4 above. VDH reviews all OSE submittals and has the means to check for valid OSE licenses providing public protection. Declaring a simple set of motions or actions such as possessing a hand auger while walking in the woods to be prohibited would not be allowed as these don’t directly endanger the welfare of the public. (criteria #1)  Some professions have a simple work product based on a single task or action that is not reviewed by an agency. Once the task is completed the work is done, and if the task is done incorrectly then the harm is immediate.  I could see the need for declaring an action or single task prohibited if the harm is immediate.